in the Interest of A.L.H., Child

Affirmed in Part; Reversed and Rendered in Part; and Opinion filed June 16,

2015.

In The

Fourteenth Court of Appeals

NO. 14-14-01029-CV

NO. 14-14-01030-CV

IN THE INTEREST OF A.L.H., A Child

On Appeal from the 313th District Court

Harris County, Texas

Trial Court Cause No. 2014-00466J

OPINION

T.N.H. (“the mother”) appeals the trial court’s judgment terminating her

parental rights to her child, A.L.H. (“the child”) (appeal number 14-14-01029-CV).

L.L.M. (“the father”) also appeals the trial court’s judgment terminating his

parental rights to the child (appeal number 14-14-0130-CV). The mother and the

father filed separate appellate briefs. We affirm the trial court’s judgment as to the

mother and, finding the Texas Department of Family and Protective Services (“the

Department”) presented insufficient evidence of its reasonable efforts to return the

child, we reverse as to the father.

I. THE MOTHER’S APPEAL

The Department moved to have the parental rights of the mother terminated.

See Tex. Fam. Code Ann. § 161.001 (West 2014). At the hearing held December 3,

2014, an affidavit of voluntary relinquishment executed by the mother was

admitted into evidence without objection. In her first issue, the mother asserts the

evidence is legally and factually insufficient for the trial court to have determined

that her affidavit of voluntary relinquishment was voluntarily executed.

A trial court may terminate the parent-child relationship if it finds by clear

and convincing evidence that the parent has executed an unrevoked or irrevocable

affidavit of relinquishment of parental rights as provided by the Family Code and

that termination is in the child’s best interest. See id. § 161.001(1)(K), (2). Section

161.103 of the Family Code lists the requirements for an affidavit of voluntary

relinquishment of parental rights. See Tex. Fam. Code Ann. § 161.103 (West

2014). Evidence that an affidavit of voluntary relinquishment was signed,

notarized, witnessed, and executed in compliance with section 161.103 of the

Family Code is prima facie evidence of its validity. In re D.R.L.M., 84 S.W.3d 281,

296 (Tex. App.—Fort Worth 2002, pet. denied).

Section 161.211(c) of the Family Code limits any direct or collateral attack

on an order terminating parental rights based on an unrevoked affidavit of

relinquishment of parental rights to issues relating to fraud, duress, or coercion in

the execution of the affidavit. See Tex. Fam. Code Ann. § 161.211(c) (West 2014).

The mother’s affidavit was notarized and signed in the presence of two

witnesses. The mother makes no claim, other than alleged involuntariness, that the

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affidavit was not executed in compliance with section 161.103.1 The mother argues

that it is the Department’s burden to negate fraud, duress, or coercion in the

execution of the affidavits, citing In re D.E.H., 301 S.W.3d 825 (Tex. App.—–Fort

Worth 2009, pet. denied.). However, that case holds the opposite. Id. at 830 (“The

burden of proving such wrongdoing is on the party opposing the affidavit.”). Here,

the mother is opposing the affidavit, yet presented no evidence of fraud, duress or

coercion in its execution.

The mother, who did not appear at the hearing, provides no evidence or

argument in her brief that she involuntarily executed her relinquishment affidavit,

and the record contains no evidence of fraud, duress, or coercion. Accordingly, we

overrule the mother’s first issue.

In her second issue, the mother contends the evidence is legally and factually

insufficient to support a finding that termination was in the best interest of the

child. See Tex. Fam. Code Ann. §161.001. The mother declared in her affidavit of

relinquishment that termination is in the best interest of the child. In Brown v.

McClennan County Child Protective Services, 627 S.W.2d 390, 394 (Tex. 1982),

the Supreme Court of Texas found “it was the intent of the Legislature to make

such an affidavit of relinquishment sufficient evidence on which the trial court can

make a finding that termination is in the best interest of the children.” See also In

re A.G.C., 279 S.W.3d 441, 452 (Tex. App.—Houston [14th Dist.] 2009, no pet.);

Lumbis v. Texas Dep’t of Protective & Regulatory Servs., 65 S.W.3d 844, 851 n.1

(Tex. App.—Austin 2002, pet. denied); Ivy v. Edna Gladney Home, 783 S.W.2d

1

The mother’s designation in the affidavit of the father’s sister, M.M., as the prospective

adoptive parent does not affect the voluntariness of the affidavit as the statute does not require

the trial court to abide by the parent’s choice of a managing conservator expressed in the

relinquishment affidavit. See Tex. Fam. Code Ann. § 161.103(b)(12); Dep’t of Family &

Protective Servs. v. Alternatives In Motion, 210 S.W.3d 794, 804 (Tex. App.—Houston [1st

Dist.] 2006, pet. denied).

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829, 833 (Tex. App.—Fort Worth 1990, no writ) (“An affidavit of waiver of

interest in child, in and of itself, is sufficient to find termination is in the best

interest of the child.”). Furthermore, the Department’s caseworker, Amy

Zachmeyer, testified that termination was in the child’s best interest. We find the

record contains sufficient evidence from which the trial court reasonably could

form a firm belief or conviction that termination is in the best interest of the child.

The mother’s second issue is overruled.

Having overruled both of the mother’s issues, we affirm the trial court’s

judgment terminating the mother’s parental rights to the child.

II. THE FATHER’S APPEAL

The Department also moved to have the parental rights of the father

terminated. See Tex. Fam. Code Ann. § 161.001. Following a hearing, the trial

court terminated the father’s parental rights on the grounds that the father (1)

knowingly placed or knowingly allowed the child to remain in conditions or

surroundings which endangered the child’s physical or emotional well-being

(section 161.001(1)(D)); and (2) constructively abandoned the child (section

161.001(1)(N)).2 The trial court also determined that it is in the child’s best interest

to terminate the father’s parental rights (section 161.001(2)). Id. §§ 161.001(1)(D)

& (N); 161.001(2). On appeal, the father asserts the evidence is legally and

factually insufficient to support the trial court’s judgment on either of the two

statutory grounds for termination. See id. § 161.001(1)(D), (N). The father does not

challenge the trial court’s decision that termination was in the child’s best interest.

See id. § 161.001(2).

2

Although requested, the trial court did not file findings of fact and conclusions of law.

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A. Burden of Proof and Standards of Review

Parental rights can be terminated upon proof by clear and convincing

evidence that (1) the parent has committed an act prohibited by section 161.001(1)

of the Family Code; and (2) termination is in the best interest of the child. Id. §

161.001(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Clear and

convincing evidence is that measure or degree of proof that will produce in the

mind of the trier of fact a firm belief or conviction as to the truth of the allegations

sought to be established. Tex. Fam. Code Ann. § 101.007 (West 2014); In re C.H.,

89 S.W.3d 17, 25–26 (Tex. 2002). This heightened burden of proof results in a

heightened standard of review. In re C.H., 89 S.W.3d at 26 (“[T]he appellate

standard for reviewing termination findings is whether the evidence is such that a

factfinder could reasonably form a firm belief or conviction about the truth of the

State’s allegations.”); see also In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—

Houston [14th Dist.] 2008, no pet.).

In a legal-sufficiency review, we consider all the evidence in the light most

favorable to the finding to determine whether a reasonable trier of fact could have

formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d

256, 266 (Tex. 2002). This means we must assume the factfinder resolved disputed

facts in favor of its finding if a reasonable factfinder could do so. Id. We disregard

all evidence that a reasonable factfinder could have disbelieved or found to have

been incredible, but we do not disregard undisputed facts, regardless of whether

they support the finding. Id. If we determine no reasonable factfinder could form a

firm belief or conviction the matter to be proven is true, we must conclude the

evidence is legally insufficient. Id.

In a factual-sufficiency review, we give due consideration to evidence the

factfinder reasonably could have found to be clear and convincing. Id. Our inquiry

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is whether the evidence is such that a factfinder reasonably could form a firm

belief or conviction about the truth of the Department’s allegations. Id. We

consider whether disputed evidence is such that a reasonable factfinder could not

have resolved that evidence in favor of its finding. Id. If, in light of the entire

record, the disputed evidence is so significant that the factfinder could not

reasonably have formed a firm belief or conviction, we must find the evidence is

factually insufficient. Id.

B. The Evidence

Amy Zachmeyer, the Department’s caseworker, testified that during the

course of this case she never had face-to-face contact with the father, and at the

time of the hearing, had most recently communicated with him a month earlier.3

According to Zachmeyer, the father has not visited the child at all throughout the

case, has not provided anything for the care and support of the child, and has not

requested visitation. The father failed to comply with court orders to establish the

paternity of the child, did not appear at any of the hearings, and did not appear at

trial. The father has four children with the mother and all four have come into the

Department’s care. The other three children all came into the Department’s care

due to the mother’s drug use before the child was born. One of those children has

been placed with a relative, one is in a foster home, and one has been adopted by

foster parents. The father was not present when the child was born but knew of the

child’s birth.

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Zachmeyer testified the father called “to inform me that he was not a citizen of the

United States and that he had received a letter from John Kerry stating that he is a United States

National and that the laws of this country do not apply to him and that I should give him his

children back.” Zachmeyer testified there were concerns about mental health issues with the

father. However, the father’s mental health was not a basis for the termination of his parental

rights.

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The child came into the Department’s care initially upon a report of medical

neglect. Zachmeyer testified there were also concerns due to the family history.

Zachmeyer further testified as follows:

Q Do you believe, based on the mother’s prior CPS [Child Protective

Services] use -- CPS history and drug use that [the father] had reason

to believe that [the child] would be in an environment that was

physically or emotionally harmful to him if left in his mother’s care?

A Yes.

Q Did [the father] do anything to alleviate those concerns?

A No.

Q In fact, he has never came [sic] to court, correct?

A I don’t know if he came to the ex -- or to the original hearing, but

he left prior to the status hearing. He has not attended any hearings at

this time.

Q Okay. And on multiple other occasions [the father] is suspected to

have been using drugs?

A Yes.

According to Zachmeyer’s testimony, at the time the child came into care, the

mother tried to evade the urine drug screen by cleansing her system with cayenne

pepper and refused to submit to a hair follicle drug test. Zachmeyer testified to her

belief that the father knowingly placed the child in a dangerous environment by

leaving the child with the mother.

The father’s sister, M.M. (“the aunt”), testified that she is aware the father

went to jail and she is aware of his drug problem, specifically his usage of crack

cocaine. The aunt testified that someone else was taking care of the child before

the Department became involved because both the mother and the father were in

jail. The aunt testified that if the child were placed in her care, she would not allow

the parents into the child’s life and would protect him.

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C. Constructive Abandonment (Subsection N)

To prove constructive abandonment, clear and convincing evidence must

establish that the child has been in the custody of the Department for at least six

months and: (1) the Department made reasonable efforts to return the child to the

parent; (2) the parent has not regularly visited or maintained significant contact

with the child; and (3) the parent has demonstrated an inability to provide the child

with a safe environment. See Tex. Fam. Code Ann. § 161.001(1)(N). The first

element focuses on the Department’s conduct; the second and third elements focus

on the parent’s conduct.

If the evidence is legally insufficient on any one of these elements, the

termination finding cannot be sustained. In re D.T., 34 S.W.3d 625, 633 (Tex.

App.—Ft. Worth 2000, pet. denied). The party seeking the termination of parental

rights bears the burden of proof. In re A.S., 261 S.W.3d 76, 90 (Tex. App.—

Houston [14th Dist.] 2008, pet. denied). Appellant challenges whether there was

clear and convincing evidence that the Department made reasonable efforts to

return the child to him.

The statute requires clear and convincing evidence that the Department

made reasonable efforts to return the child to the parent. Tex. Fam. Code Ann. §

161.001. In accordance with the heightened standard of review that results from

this heightened burden of proof, we find the evidence presented at trial is

insufficient to support the trial court’s conclusion that the Department undertook

reasonable efforts to return the child to the father. See Tex. Fam. Code Ann. §

101.007; In re C.H., 89 S.W.3d at 25–26; In re C.M.C., 273 S.W.3d at 873.

Generally, implementation of a family service plan by the Department is

considered a reasonable effort to return a child to the parent. In re S.A.C., 04-13-

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00058-CV, 2013 WL 2247471, at *2 (Tex. App.—San Antonio May 22, 2013, no

pet.) (mem. op.). The Department concedes that no plan was created for the father.

A court may waive the requirements of a service plan and make reasonable

efforts to return the child to a parent if the trial court finds the parent subjected the

child to “aggravated circumstances.” Tex. Fam. Code Ann. § 262.2015(a)(West

2014); see also In re Pate, 407 S.W.3d 416, 419-20 (Tex. App.—Houston [14th

Dist.] 2013 no pet.) (holding that in the absence of aggravating circumstances as

defined by section 262.2015, the Department was required to make reasonable

efforts to enable the child to return home under section 261.201 of the Texas

Family Code). The court can make such a finding if, as may be relevant here, “the

parent’s parental rights with regard to another child have been involuntarily

terminated based on a finding that the parent’s conduct violated section

161.001(1)(D) or (E)” or “if the parent’s parental rights with regard to two other

children have been involuntarily terminated.” Tex. Fam. Code Ann. § 262.2015(5)

and (7) (West 2014).4

The Department did not plead aggravating circumstances in its original

petition for termination. The Department’s Permanency Plan and Progress Report,

filed March 26, 2014, states, “Judge Devlin ordered aggravated circumstances, first

permanency hearing on 4/3/14.” It is unclear which parent is subject to the alleged

finding. Our record does not contain a reporter’s record from that hearing or an

order signed by the trial judge to that effect. At trial, the Department did not argue

aggravating circumstances or offer into evidence any exhibits reflecting the basis

for the statement contained in the progress report. The Department also does not

argue aggravating circumstances on appeal.

4

The statute lists several other “aggravating circumstances.” With no findings of fact to

guide us, we decline to discuss all possible factors.

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Zachmeyer testified that the father was not asked to comply with a family

service plan “due to prior termination.” However, the record does not reflect that

any prior termination was based on a finding that the father’s conduct violated

subsection (D) or (E). Zachmeyer testified that other children of the father “came

into [the Department’s] care” due to their mother’s drug use, but there is no

evidence that the father’s parental rights were terminated as to more than one child.

Accordingly, the record fails to demonstrate evidence of aggravating

circumstances under section 262.2015. To the extent the trial judge may have

found aggravating circumstances and waived the requirements of a service plan

and the requirement to make reasonable efforts to return the child to the father,

there is no support for the finding in this record.

We now consider, therefore, whether the record reflects there were

reasonable efforts to return the child in spite of the absence of a family service plan

or a waiver of the requirement to make such efforts. See In re Pate, 407 S.W.3d at

420. As previously stated, we focus on the Department’s efforts, not the father’s.

Tex. Fam. Code Ann. § 161.001(1)(N)(i). The Department argues the record

contains such evidence, relying upon In re B.S.T., 977 S.W.2d 481 (Tex. App.—

Houston [14th Dist.] 1998), rev’d on other grounds by In re C.H., 89 S.W.3d 17,

26 (Tex. 2002).

In In re B.S.T., appellant’s whereabouts were unknown at the time the

children were taken into custody by the Department. Id. at 486. When appellant

was located after his release from prison, he was advised of visitation and visited

his children twice, but made no further efforts. Id. Caseworkers advised appellant

to sign an affidavit of paternity, but he failed to do so. The Department’s

caseworker testified that all reasonable efforts were made to return the children to

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the parents. The B.S.T. court found such evidence sufficient to support termination

under subsection N. Id.

Here, the Department argues that its actions to serve the father with notice of

the suit and the trial court’s orders to establish the father’s paternity are evidence

of the Department’s reasonable efforts. The evidence reflects the father had called

Zachmeyer, but she had never seen him face-to-face. Zachmeyer did not testify, as

did the caseworker in In re B.S.T., that all reasonable efforts were made to return

the child to the father. We conclude attempted service of suit and establishment of

paternity, standing alone, are insufficient to produce in the trial court’s mind a firm

belief or conviction that the Department made reasonable efforts at reunification.

See id.

The Department also argues that its efforts to place the child with the aunt

constitute reasonable efforts. However, the record reflects the aunt resides in

Arizona and she testified that she would not allow the parents into the child’s life.

We therefore disagree that the Department’s efforts to place the child with the aunt

constitute an effort to return the child to the father.

Accordingly, we hold that the evidence is legally insufficient to support the

trial court’s termination of the father’s parental rights under subsection N.5 The

father’s first issue is sustained.

5

The father also argued the Department failed to prove that he has demonstrated an

inability to provide the child with a safe environment. Tex. Fam. Code Ann. § 161.001(1)(N)(iii).

As we already have held that the evidence is legally insufficient as to the second element of

subsection N, we need not reach the father’s additional argument. If the evidence is legally

insufficient on any one element, the termination finding cannot be sustained. In re D.T., 34

S.W.3d at 633.

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D. Endangerment (Subsection D)

To prove endangerment, there must be clear and convincing evidence that

the parent “knowingly placed or knowingly allowed the child to remain in

conditions or surroundings which endanger the physical or emotional well-being of

the child.” Tex. Fam. Code Ann. §161.001(1)(D). Subsection D concerns the

child’s living environment, rather than the conduct of the parent, although the

conduct of the parent is relevant to the child’s environment. In re S.M.L., 171

S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Subsection D is

not a basis for terminating parental rights if the parent was unaware of the

endangering environment. In re Z.C.J.L., 14-13-00115-CV, 2013 WL 3477569, at

*12 (Tex. App.—Houston [14th Dist.] July 9, 2013, no pet.) (mem. op.); see also

In re T.H., 131 S.W.3d 598, 603 (Tex. App.—Texarkana 2004, pet. denied)

(“[E]ven if clear and convincing evidence supported the trial court’s finding that

the environment posed a danger to T.H.’s well-being, the Department failed to

show that [the father] knowingly placed or allowed T.H. to remain in such an

environment.”). However, a parent need not know for certain that the child is in an

endangering environment; awareness of such a potential is sufficient. Id.; see also

In re C.L.C., 119 S.W.3d 382, 392 (Tex. App.—Tyler 2003, no pet.) (“It is

sufficient that the parent was aware of the potential for danger to the child in such

environment and disregarded that risk.”). The relevant time period is before the

Department removes the child. In re J.R., 171 S.W.3d 558, 569 (Tex. App.—

Houston [14th Dist.] 2005, no writ).

Zachmeyer testified that “based on the mother’s prior [Department]

history and drug use that [the father] had reason to believe that [the child] would be

in an environment that was physically or emotionally harmful to him if left in his

mother’s care.” Zachmeyer further testified that the father knowingly placed the

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child in an environment that was dangerous to the child. No evidence was

presented to support Zachmeyer’s opinion that the father had knowledge of the

mother’s drug use, either in the past or present. The record contains no drug test

results, criminal records, or prior termination decrees for either parent. Zachmeyer

did not present any factual bases to support her conclusory testimony.

Unsupported, conclusory opinions of a witness do not constitute evidence of

probative force. In re D.W., 01-13-00880-CV, 2014 WL 1494290, at *6 (Tex.

App.—Houston [1st Dist.] Apr. 11, 2014, no pet.) (mem. op.). A witness’s belief is

no more than mere surmise or suspicion, which is not the same as evidence.

Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.—Austin 2004, pet. denied).

The record reflects the Department introduced no evidence of the actual

physical surroundings or conditions of the child’s environment prior to his

removal.6 Moreover, the Department did not introduce legally–sufficient evidence

that the father had knowledge of the child’s environment at that time. Although

there is some evidence of the father’s suspected drug use, the record fails to reflect

when it occurred or whether it posed a potential danger to the child.

Subsection D unambiguously requires proof that the father knowingly

exposed the child to an endangering environment. See In re J.R., 171 S.W.3d 558,

570 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The record contains no

evidence that the child was in an endangering environment before the child was

taken into the Department’s care or that the father knowingly exposed the child to

such an environment. We therefore conclude the evidence is legally insufficient to

support the termination of the father’s parental rights under subsection D and we

sustain the father’s second issue.

6

Zachmeyer testified that the child came into Department care due to concerns of

medical neglect and the mother’s drug use. Medical neglect was ruled out.

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CONCLUSION

We affirm the trial court’s judgment terminating the mother’s parental rights

to the child. We conclude the evidence is insufficient to support the termination of

the father’s parental rights pursuant to subsection D or N. Accordingly, we reverse

that portion of the trial court’s judgment terminating the father’s parental rights to

the child, and render judgment denying the Department’s request to terminate the

father’s rights to the child.

No challenge was made to that portion of the trial court’s judgment naming

the Department as sole managing conservator. The trial court is allowed to appoint

the Department as managing conservator of a child without terminating parental

rights if the court finds that: (1) appointment of a parent as managing conservator

would not be in the best interest of the child because the appointment would

significantly impair the child’s physical health or emotional development; and (2)

it would not be in the best interest of the child to appoint a relative of the child or

another person as managing conservator. See Tex. Fam. Code Ann. § 263.404(a)

(West 2014). Here, the trial court made the required best-interest findings to

support the appointment of the Department as sole managing conservator of the

child. See id.; In re J.A.J., 243 S.W.3d 611, 615–17 (Tex. 2007). In this context, a

challenge to the appointment of the Department as sole managing conservator of

the child is not subsumed in the father’s challenge of the termination decision. In

re J.A.J., 243 S.W.3d at 615-17. Accordingly, the remainder of the trial court’s

judgment is affirmed.

/s/ Martha Hill Jamison

Justice

Panel consists of Chief Justice Frost and Justices Jamison and Busby.

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